ITC Monthly Wrap-Up: October 2022

Authored by: Rosalynd Upton, Ph.D.

October saw four complainants file five new Section 337 complaints with the Commission:

1. Bell Semiconductor, LLC, filed a complaint against NXP Semiconductors, NXP B.V., NXP USA, Inc., SMC Networks, Inc., d/b/a/ IgniteNet, Micron Technology, Inc., NVIDIA Corporation, Advanced Micro Devices, Inc., Acer, Inc., Acer America Corporation, Infineon Technologies AG, Infineon Technologies America Corp., Qualcomm Technologies, Inc., Motorola Mobility, LLC, and Western Digital Technologies, Inc., in Certain Electronic Devices, Semiconductor Devices, and Components Thereof, Dkt. No. 3647;
2. Bell Semiconductor, LLC, filed a complaint against Analog Devices, Inc., Bose Corporation, Marvell Technology Group, Ltd., Marvell Semiconductor, Inc., Suteng, Innovation Technology Co., Ltd., d/b/a RoboSense, Kioxia Corporation, Kioxia America, Inc., MaxLinear, Inc., Linksys USA, Inc., MACOM Technology Solutions, Inc., Silicon Laboratories, Inc., DENSO Corporation, Skyworks Solutions, Inc., OmniVision Technologies, Inc., and Arlo Technologies, Inc., in Certain Semiconductor Devices Having Layered Dummy Fill, Electronic Devices, and Components Thereof, No. 3649;
3. VideoLabs, Inc., filed a complaint against HP, Inc., in Certain Video Processing Devices and Products Containing the Same, Dkt. No. 3650;
4. DivX, LLC, filed a complaint against Amazon.com, Inc., and VIZIO, Inc., in Certain Video Processing Devices and Components Thereof, No. 3651; and
5. Sartorius Bioanalytical Instruments, Inc., filed a complaint against Gator Bio, Inc., in Certain Bio-Layer Interferometers and Components Thereof, No. 3652.

The Commission also instituted eight investigations in October:

1. Certain Semiconductors and Devices and Products Containing the Same, Including Printed Circuit Boards, Automotive Parts, and Automobiles, Inv. No. 337-TA-1332 (assigned to ALJ Elliot);
2. Certain Automated Put Walls and Automated Storage and Retrieval Systems, Associated Vehicles, Associated Control Software, and Component Parts Thereof (II), Inv. No. 337-TA-1333 (assigned to Chief ALJ Cheney);
3. Certain Raised Garden Beds and Components Thereof, Inv. No. 337-TA-1334 (assigned to Chief ALJ Cheney);
4. Certain Integrated Circuits, Mobile Devices Containing the Same, and Components Thereof, Inv. No. 337-TA-1335 (assigned to ALJ McNamara);
5. Certain Semiconductor Devices, Mobile Devices Containing the Same, and Components Thereof, Inv. No. 337-TA-1336 (assigned to ALJ Bhattacharyya);
6. Certain Hazelnuts and Products Containing the Same, Inv. No. 337-TA-1337 (assigned to Chief ALJ Cheney);
7. Certain Smart Televisions, Inv. No. 337-TA-1338 (assigned to ALJ Moore);
8. Certain Smart Thermostat Hubs, Systems Containing the Same, and Components of the Same, Inv. No. 337-TA-1339 (assigned to ALJ McNamara);

This month's ITC Wrap-Up discusses the Commission's recent decision to omit certain proposed respondents and to narrow the scope of an investigation from that proposed by the complaint in Certain Semiconductors and Devices and Products Containing the Same, Including Printed Circuit Boards, Automotive Parts, and Automobiles, Inv. No. 337-TA-1332. In August, Daedalus Prime, LLC (Daedalus), filed a complaint asserting five patents against various carmakers, the chipmakers from whom these carmakers purchase automobile infotainment systems, and other companies that allegedly employ the accused chipsets in non-automotive applications. Pursuant to Commission Rule 210.12(a)(12), Daedalus's plain statement of the categories of accused products included "semiconductors, printed circuit boards ('PCBs'), automotive parts including infotainment systems and instrument clusters, and automobiles." Complaint, ¶ 5.

The Commission instituted an investigation into Daedalus's allegations. Comm'n Notice (October 7, 2022). The notice of institution is notable in two respects. First, the companies that employ the accused chipsets in non-automotive applications were absent from the list of named respondents. Id. In a separate letter to Daedalus's counsel, the Commission explained that it had determined not to institute an investigation into these respondents because "[t]he information provided with the complaint, supplement, and exhibits . . . does not sufficiently describe the specific instances of importation or sale for the foregoing respondents." Comm'n Notice (October 7, 2022).

Second, the Commission also limited the investigation to carmakers and the chipmakers these carmakers allegedly use. In doing so, the Commission changed Daedalus's plain statement of the categories of accused products and limited the scope of investigation to: "semiconductor chips and printed circuit boards for use in automobile infotainment systems and instrument clusters, and automobile infotainment systems, instrument clusters, and automobiles containing the same, and components thereof." Id. In other words, the Commission confined the investigation, and any remedial orders that may issue, solely to semiconductors used in automotive applications.

The Commission was not unanimous in its decision, however. Commissioner Rhonda Schmidtlein wrote a partial dissent expressing her disapproval of narrowing the scope of the investigation. According to Commissioner Schmidtlein:

[The Commission] should not be tying the plain English statement in the notice with how the complainant establishes importation for purposes of institution. In other words, the fact that the imported chipset relied upon by the complaint to show satisfaction of the importation requirement is intended to be used in an automobile infotainment system should not narrow the scope of the investigation to only that intended use if the allegations of violation in the complaint are not limited to that use.

Commissioner Schmidtlein Partial Dissent (October 6, 2022). Commissioner Schmidtlein also disagreed with omitting certain respondents, citing the portions of Daedalus's complaint where it had provided ample evidence of "specific instances of alleged unlawful importations or sales" for these respondents, pursuant to Commissioner Rule 210.12(a)(3).

The Commission's ruling on Daedalus's complaint provides a reminder that complainants should consider how they define the accused products, and as appropriate, limit the scope of the investigation to avoid institution delays. The Commission's ruling further serves as a reminder that complainants should identify the best evidence of importation possible.